About the Author

Anthony Willy

Anthony Willy is a Barrister and Solicitor, who served as a Judge on four Courts: District, Environment, Tax and Valuation. He is a former Lecturer in Law at Canterbury University. He presently acts as an Arbitrator, a Commercial mediator, a Resource Management Act Commissioner, and is a Director of several companies.

Submissions on Constitutional Review

My submissions concerning possible constitutional changes in New Zealand are under the following headings

1. Status quo.

2. Social implications of change .

3. Political implications of change.

4. Economic considerations

5. Legal considerations.

1. Status Quo

It is understood that the Constitutional Review Committee has been established as part of the political process by which The Maori Party agreed to support the National Party on matters of confidence and supply following the 2112 general election. The terms of reference make it clear that the committee’s remit is wide ranging.

I comment generally under the above headings.

The status quo is that New Zealand has a unicameral Parliament elected pursuant to the Mixed Member Proportional system (MMP). This means that the party winning the most electorates does not necessarily govern. It is the party with the most list votes which carries the day.

Since the inception of MMP this has resulted in coalition governments comprising more than one party. The perceived advantages of MMP are that it provides for a wider spread of opinion in The Parliament and allows minor parties the opportunity of a real voice in government. This in turn reflects the overall unity of New Zealand society within a system which allows for a wider variety of opinion and input into the political process.

The MMP system is the only political check on the exercise of political power by any single group within the process. Specifically New Zealand lacks the oversight provided for by a second chamber, neither does it enjoy the checks and balances afforded by a Federal system of government which requires constant balancing of the rights and powers of states with those of the Nationally elected government.

2 Social Implications of departure from existing constitutional conventions

In my view the necessary protections of fundamental human rights and enforcement of obligations, rests heavily on the collective tolerance and common sense of the electors. To date this has delivered stable and effective government.

Any constitutional change which has the potential to erode this tolerance and common sense is not only unnecessary it is positively harmful. In that sense the present constitutional arrangements are not “broken and do not need fixing”.

The elephant in the room in any New Zealand constitutional debate is always the status and rights of the indigenous people, and presumably that is why The National Party was persuaded by its coalition partner to set up the present review committee. I focus on this group because there does not appear to be any agitation by more recent immigrant groups or the descendents of the early European settlers for added, or amended constitutional rights.

It seems clear that Maori are not content with their status within the present constitutional arrangements but seek political influence disproportionate to the size of their voting population. This is apparently based on the dubious notion that they are the “first people of the land” and has in turn been encouraged by the pattern of Treaty Settlements, and the legal significance given by the Courts in more recent years to the Treaty of Waitangi. These added rights are pursued against the background of absolute political equality currently enjoyed by Maori people, including the unique privilege of race based seats in Parliament enjoyed by no other group of electors and therefore any change can only alter the present balance of political equality currently enjoyed by all New Zealand citizens.

By definition if added political rights are given to Maori than then that will diminish the political rights enjoyed by all other New Zealand citizens. The constitutional cake is finite and to cut it more generously in favour of one group is to leave less for all of the others. That will without doubt erode the collective tolerance and commonsense upon which the present constitutional arrangements rest and which is crucial to the government of a society by means of an unwritten constitution.

It has been demonstrated repeatedly in other countries which do not enjoy a truly representative system of government [1] that this will lead to widespread resentment and given the necessary spark will lead to civil unrest. This is particularly so of New Zealand which historically has presented as a truly egalitarian society having its settler roots in rebellion against unrepresentative ingrained privilege.

The problem for the committee is compounded by the fact that Maori society has no such tradition. Left to itself it is historically more akin to a feudal society in which the power and the wealth is shared unequally among members of the group. There is no reason that any additional constitutional rights acquired as a result of the recommendations of the committee will be shared in any other way. Indeed if it were to be supposed that Maori would exercise any newly created privileges in some way more compatible with the existing arrangements then they would not need them, because they already enjoy complete political equality.

3.Political implications

A central tenet of the Maori agitation for increased constitutional rights is the enshrining of the Treaty of Waitangi as a document having constitutional significance. The implications of this are as unknowable. Of necessity the significance of such a constitutional change will be left to the Courts to decide and as in the case of some earlier judgments of our higher Courts this will depend on the political and social predilections of individual judges. [2]

In the way in which these maters come before our courts it will take many years before the altered constitutional arrangements are bedded in, and when finally revealed they will represent not the democratic views of the voters but the views of a small and unrepresentative group of Judges.

In addition there will, of necessity occur a prolonged period of political uncertainty which will damage the economy and result in a loss of public confidence in the government of the day.

Before the Committee considers the place of the Treaty in the present day New Zealand constitutional arrangements it needs to do two things:

(a) Be satisfied to the highest standard of proof precisely which iteration of the Treaty is the valid original. There is respectable body of literature to suggest that the document included as a schedule to the Treaty of Waitangi Act 1975 is a modern revision which contains material crucial to the current debate which is not found in the original document signed by the Chiefs [3]. On a matter of such enduring political significance Parliament has a duty to all New Zealand citizens to review this matter afresh and not be caught up in revisionist history no matter how well intentioned it was at the time of writing.

(b) The committee should look afresh at the legal status of the Treaty in the light of the validity of the pronouncements of various courts over the years since the Treaty was signed, and having regard to the social conditions which existed at the time of signing. There is much talk of the “principles of The Treaty” but beyond a vague association with a notion of “partnership” these have never been enunciated. Even a cursory reading of the text of the original document is sufficient to demonstrate that there are no “principles” enshrined in the treaty. It was a pragmatic Victorian political document which simply evidenced an exchange of the Sovereign rights enjoyed by the Maori signatories, for the protection of the British Crown; and a guarantee that lands and rights currently enjoyed by some of those Maoris [4] would be respected by the Crown.

There is a great deal of published material on both of these matters, much of which does not accord with the thinking current in some political quarters. Parliament is the highest court in the land and it has the power, indeed the obligation to revisit these matters before making any far reaching constitutional changes which may affect the peace and good governance of New Zealand. It is to be hoped that the work of the committee will confront these issues before making any recommendations to Parliament.

4. Economic considerations

The New Zealand economy rests on a narrow base largely dependant on its primary industries to pay its way in the world. Any constitutional change which makes it more complicated for business to function profitably will have an immediate impact on our terms of trade, and therefore our standard of living.

If the constitution is changed in such a way that any minority group is allowed what may well become vetoes on economic growth (as is very likely under the new Seabed and Foreshore arrangements) business competitiveness and individual wealth of New Zealanders will suffer. It matters not that this comes about by a moratorium on development imposed by the minority, or by “rent” extracted by that minority as the price of development the result is the same; unwarranted costs and less competitiveness. To allow this sort of economic privilege will also give rise to social resentment in the majority.

5. Legal considerations

As mentioned above much of the current debate about the place of Maori people in the constitutional arrangements of New Zealand arises not from determinations of the elected representatives of the people but from judgments of the courts. It is therefore crucially necessary that the committee revisit the more important of these judgments and decide for itself whether they represent conclusions which are relevant to a debate about the Constitution of New Zealand in the twenty first century.

In doing so the Committee should satisfy itself firstly: Whether the views of the various judges are simply that, personal views of individual judges, or represent the law developed having regard to the doctrine of precedent (binding on all judges); and secondly against the background of doctrine of the separation of powers enjoyed by the judiciary on the one hand and Parliament on the other.

The source of the current debate about the place of the Treaty of Waitangi as a constitutional instrument with a place in New Zealand law is The decision of the Court of Appeal in New Zealand Maori Council v Attorney General. [5] The decision in the case was in a sense a foregone conclusion because s 9 of The State Owned Enterprises Act 1986 required the Crown to have regard to the principles of the Treaty of Waitangi, and the Court both at first instance and on appeal so ruled.

What is more contentious and for which there was no prior authority is the exposition by the Court of what comprises the principles of The Treaty. They are referred to in the long title to the Treaty of Waitangi Act [6] above but no attempt is made in the Act to define what the principles are.

It is against this uncertain background that the Court of Appeal essayed its own definitions of those principles. Cook P said at pg. 663 that:

differences between the texts (sic The Treaty) and the shades of meaning do not matter for the purpose of this case. What matters is the spirit…the Treaty needs to be seen as an embryo rather than a fully developed and integrated set of ideas.

His Honour then went on to make the crucial determination that the:

treaty signified a partnership between races and it is in this context that the answer to the present case is to be found. [7]

From this analogy Cook P then extrapolated the well understood common law requirement that partners must act toward each other:

with the utmost good faith which is a characteristic obligation of partnership.

Richardson J defined the Treaty as:

a solemn compact between two identified parties The Crown and The Maori….that basis of the compact requires the Crown to act reasonably and in good faith….an obligation of honour, and:

There is one paramount principle …..that the compact between the Crown and the Maori called for the protection by the crown of both Maori interests and British interests and rested on the premise that each party would act reasonably and in good faith towards the other within their respective spheres. That is I think reflected both in the nature of the treaty and its terms….if the treaty was to be taken seriously by both parties each would have to act in good faith and reasonably towards the other

and referred with approval to the instructions of Lord Normanby for the drawing up of the Treaty that:

all dealings with the aboriginals must be conducted …on the principles of sincerity justice and good faith

And crucially

Each party owed the other a duty of good faith. It is the kind of duty which in civil law partners owe to each other

Casey J and Bisson J expressed similar views. The important point which emerges from the Courts careful analysis of what are the principles of the Treaty relevant to both the time it was signed and in 1986 is that the parties owed and continue to owe each other obligations of sincerity, justice and good faith. By way of analogy these are similar to the duties which partners in a commercial venture owe each other. [10]

On any careful reading of the Maori Council case the Court did not decide as has become commonly supposed that Maori and non Maori were in partnership with each other, a partnership created by the Treaty, merely that the Crown and Maori owe each other duties which are akin to those owed by partners to a commercial transaction. In the context of a constitutional debate and in particular whether the Treaty is a constitutional document the distinction is fundamental.

In the result Maori and the Crown are not partners in any sense of the word. Indeed it is constitutionally impossible for the Crown to enter into a partnership with any of its subjects [11]. The true position is that the Crown is sovereign but owes duties of justice and good faith to the Maori descendants of those who signed the treaty.

Once this distinction is understood there can be no question of the sovereignty of the Crown in New Zealand represented by the Governor General and The New Zealand Parliament, being shared with any other person or entity. It is one and indivisible.

The Treaty has served its constitutional purpose in transferring sovereignty in New Zealand to the British Crown. That sovereignty has been exercised for the last 173 years both de jure and de facto. It may be that various Maori groups can establish some historic breaches of the Crown obligation to act towards them in good faith but that says nothing about the Treaty as a constitutional document.

Summary:

1. The collective common sense and tolerance of the majority is a crucial ingredient in the current constitutional mix. To endanger that unspoken tenet of New Zealand’s unwritten constitutional arrangements will have unknowable social consequences none of them benign, and possible resulting in widespread social dislocation.

2. The Constitutional cake is finite. To increase the power of one group will diminish the rights of all other groups.

3. The creation of one privileged minority group with either powers of veto, or to extract rent from necessary economic developments will damage New Zealand international competiveness, suppress wealth creation, and give rise to widespread social resentment.

4. In a constitutional context The Treaty has served its purpose by transferring Sovereignty over New Zealand to the British Crown. That is a fait accompli, and therefore that element of the treaty has expired and has no continuing force. The obligation of the Crown to act toward Maori with justice and good faith remains.

5. There is not, and never has been a constitutional partnership between the Crown and Maori people. The judgment in the Maori Council case has been misinterpreted. The point which all of their Honours were making in that case was that the Crown has ongoing duties to act justly and in good faith towards Maori people in ensuring that they are not dispossessed of any of the class of assets owned by them mentioned in the original treaty document. That is the overriding principle to be extracted from the wording of the treaty.

Footnotes:

[1] For example South Africa under the apartheid rule, and any of the numerous theocracies and one party dictatorships which currently exist around the world. We do not wish to ever see a “New Zealand Spring” or the need for “Velvet or Orange Revolutions” in New Zealand.

[4] Clearly not the great proportion of Maoris because of the feudal nature of the society, in which ownership and tribal power was vested in the few. There is also the problem of whether or not Maori society ever practiced or understood ownership of property in the way which was common in the British Legal system of the day